How The Family Court’s Purpose To Protect Children Became Inverted
An updated version of this essay was published in the journal Family & Intimate Partner Violence Quarterly, Spring 2021.
In the early 1980s in Sydney, Australia, the family court suffered a series of brutal and ideologically driven attacks. A judge was shot dead on his doorstep, and bombs were exploded in the houses of two other judges; one killing a judge’s wife, and the second injuring a judge and his children. A third bomb was exploded outside a family court building in the suburb of Parramatta, with another unexploded bomb found under the hood of the car of a family court lawyer. In a related incident, a Jehovah’s Witness church hall was also bombed, killing an elder and hospitalising 71 members of the congregation.
For decades these attacks remained one of the great unsolved mysteries of Australian crime, until 2015 when a man named Leonard Warwick was arrested and charged for the murders and bombings. In July this year the Supreme Court of New South Wales found Warwick guilty of 31 of the 32 offences for which he was charged. In early-September he was sentenced to life in prison.
In his summary of the proceedings Justice Peter Garling described Warwick’s acts as “…an attack on the very foundations of Australian democracy.” Yet this is a far too broad depiction of the reasons for Warwick’s murderous behaviour, instead his actions were an attack on a specific idea; the idea that the state has the right to intervene in domestic affairs.
Warwick was motivated by an extreme hostility towards the family court during a child custody dispute with his ex-wife. He saw the court as an impediment to his self-prescribed right to dominate his ex-wife and child, with his actions a violent demonstration of how intensely he believed in his own absolute domestic authority. His bombing of the Jehovah’s Witness church hall was due to the congregation having helped his ex-wife and child hide from him.
Warwick’s crimes can be understood as acts of proto-Men’s Rights Activist (MRA) terrorism. MRAs have a pronounced — and unfounded — grievance against family courts, maintaining that they are instinctively biased against men, and designed to undermine their ability to exercise what they see as their rightful power over their children and partners. MRAs obsessively advance the idea that women habitually lie about domestic abuse in order to manipulate the courts.
This argument can rarely be substantiated because it is actually a tactic of misdirection, designed to obfuscate custody hearings and elicit sympathies from judges who may share an instinctive suspicion towards women. Instead what these men actually believe is that violence is an essential component of masculinity, that it is intrinsic to their dignity, and therefore they should face no consequences for exerting it. Such is the fervour by which MRAs believe in their own fundamental right to violence they have even taken to arguing that government services that seek to assist battered women are discriminatory against men.
Astonishingly, over the past three decades an ideological revolution within family courts throughout the West have seen these institutions become more sympathetic to this worldview. In doing so they have perpetuated the violence and torment for countless women and children, and severely damaged their own reputations as ethical and dependable arbiters of disputes. In June, the United Kingdom’s Ministry of Justice issued an extraordinary report that firmly stated its family courts are now refusing to protect children from obviously dangerous fathers. Similar reports could be written in almost all Western capitals.
Around the same time Warwick was conducting his acts of terrorism against the family court in Sydney, an American psychiatrist by the name of Richard Gardner was devising a way for men like Warwick to legally gain the upper hand in custody hearings. Gardner’s work would allow this idea about the importance of violence to masculinity to be advanced, rather than hindered, by family courts. Of course, this could never be explicitly advocated, so instead women who reported sexual and physical abuse of children needed to be discredited in order for male violence to be disbelieved, downplayed, or completely ignored.
Gardner’s scheme involved exploiting a weakness in the dominant legislative framework throughout the West concerning child custody. This is known as equal shared parental responsibility, and it works on the presumption that a child’s best interests are always met by both parents sharing duties towards the upbringing of children, regardless of whether they live together. The legislation technically contains a condition to disregard this presumption if children are at risk of harm, yet Gardner found a way to not just neutralise this condition, but invert it.
Gardner’s revolution was built on devising a “theory” that could be used to create suspicion towards any attempts by mothers to report cases of child abuse. Parental Alienation Syndrome (PAS) has a simple premise; that almost all allegations of child abuse will be false, and the more a mother, or even the child themselves, insists that abuse has occurred, the more this “syndrome” — or brainwashing of a child — is at work. Gardner asserted that this “alienation” was itself a form of child abuse more damaging than any violence. He designed a trap, one that would silence mothers from reporting abuse, or punish them if they did.
All of Gardner’s writing was self-published, and none of it peer-reviewed. His ideas have been widely discredited as junk science in academic literature, and have been dismissed by all authoritative psychiatric, psychological, medical bodies in the United States as lacking supporting empirical or clinical evidence. Despite heavy lobbying from MRA groups, PAS has failed to meet the scientific standards for inclusion in the Diagnostic and Statistical Manual of Mental Disorders. This is because Gardner’s “syndrome” wasn’t designed to diagnose a mental condition in a child, it was designed to help abusive fathers win court cases. Children for Gardner were merely pawns to be used in a battle for the state to recognise the absolute domestic authority of men. Their predicaments seemed inconsequential to him.
Despite this lack of professional credibility, PAS has been advanced into family courts by an active coalition of grifter therapists and unscrupulous lawyers working for abusive men. As attorney Barry Goldstein explained in a recent issue of Family & Intimate Partner Violence Quarterly: “…the best way for lawyers and mental health professionals to make large incomes is to support approaches that favour wealthy abusers. The pernicious Parental Alienation Syndrome (PAS) was concocted to give these professionals an argument to support abusive fathers. This started the cottage industry that has done so much to help abusers and spread misinformation in the courts.”
While he was alive Gardner himself became an “expert witness” in over 400 custody cases throughout 25 states in the United States, with judges willingly deferring to his testimony despite his lack of academic and professional credibility. Due to the way legal processes build on precedents, once his ideas had worked their way into the justice system they were easily able to multiply and fortify themselves. The legitimacy of PAS in the eyes of judges and other legal associates stemmed solely from the frequency by which it was used, rather than the validity of the concept itself.
However, efforts have been made to counteract these lazy judiciary practices. A 2008 report by The National Council of Juvenile and Family Court Judges (NCJFCJ) recommended that “Under relevant evidentiary standards, the court should not accept testimony regarding parental alienation syndrome.” Further adding that “…quite apart from its scientific invalidity, [PAS] inappropriately asks the court to assume that the child’s behaviours and attitudes toward the parent who claims to be “alienated” have no grounding in reality. It also diverts attention away from the behaviours of the abusive parent.”
With the deceptive nature of PAS gaining legal recognition, the cottage industry that Goldstein depicts found an uninventive, but arguably even more insidious idea to advance into family courtrooms in order to circumvent this controversy. This is simply called Parental Alienation (PA). By dropping the “syndrome” advocates of PA have attempted to distance themselves from Gardner’s assertion that children are suffering a mental condition when they are reluctant to engage with an abusive father. They have also sought to broaden the concept away from Gardner’s primary goal of discrediting allegations of child sexual abuse. Instead PA is a catch-all description of actions taken by one parent to exclude another.
This realigned concept of PA sounds more reasonable. One can easily imagine scenarios where one parent acts to exclude another. However, in its legal usage both the general and the gendered sentiment remain the same; a “hostile mother” acting to undermine the perceived domestic rights of a father. PA has become beloved by MRAs as it provides legitimacy to their paranoid, conspiratorial thinking that mothers are “poisoning” children against them, instead of recognising their own abusive behaviour as harmful and fear-inducing. The concept easily plays into medieval conceptions of women as “irrational” and “hysterical” that can be used to paint women as vindictive, manipulative, and prone to fabrication in custody hearings.
This tactic to mislead the court has proved incredibly successful. Once PA is raised in a custody case it has the influence to overshadow all other arguments, and minimise the evidence of both child and partner abuse in the court’s decision-making. Such is the concept’s power that it is able to reassign victimhood away from children towards abusive fathers by making mothers seeking to protect their children the real perpetrators. A 2019 empirical study of over 2000 custody cases in the United States by the George Washington University Law School found that when mothers report child abuse, a counter claim of “parental alienation” by the father doubles the rate that mothers themselves will lose full custody of their children.
These irrational decisions are leading to horrific subsequent outcomes. Over the past decade the Center for Judicial Excellence has been tracking the murders of children in custody disputes in the U.S. By its data there have been 106 murders of children where judges have knowingly placed them in dangerous environments. This is not just an astonishing institutional failure to prevent violence against children, it is also a failure to recognise how abusive men take their legal victories as endorsements of their behaviour. When family courts reward abusive men with custody they often intensify the violence that children experience.
Earlier this year a special issue of the Journal of Social Welfare and Family Law dedicated solely to the phenomenon of PA highlighted how the concept was also skewing custody cases in the United Kingdom, Canada, Australia, New Zealand, Spain and Italy. With several authors describing how the concept was undermining both domestic law and international convention.
Throughout the West “parental alienation” has now become the standard defence for any fathers who are accused of domestic violence and child abuse. As a result, family courts have become so hostile to mothers and children that lawyers — cowed by the process — often now recommend that mothers do not report child abuse because they know that this will lead to custody being granted to the abusive father.
Parental Alienation has become such an effective tool for abusive men because of the way it has attached itself to the legislative framework. The concept has been able to bastardise the interpretation of the presumptive “right of contact” for children to both parents — with the overriding caveat of child safety and welfare — towards an affirmation of the “right to contact” for fathers, regardless of their behaviour. Extraordinarily, Gardner’s belief that “alienation” is a form of child abuse more harmful than violence has successfully been able to convince judges that in awarding custody to abusive men they are actually acting in the child’s best interests.
The perverse “genius” of PA’s deception has been the way it backs mothers into a corner, preys on her fears, and turns her maternal instincts to protect her children into a pitfall. The more PA manipulates the justice system to endanger her children, the more desperate a mother becomes. Because now it is not just an abusive man who is the threat to her children, but the state itself with all its coercive powers. This desperation is then not viewed as evidence of a genuine threat by judges — who would never see themselves as part of the problem — but instead a further example of a mother’s “alienating” behaviour, and a confirmation that she is not to be trusted.
Of course, this ideological conversion of the court has relied heavily on judges and custody evaluators — who are highly influential on outcomes — being susceptible to PA’s underlying assumptions. This is not just the conception of women as instinctively deceitful, but also an adherence to primitive familial gender roles. PA’s philosophical core is built on the MRA’s misguided sense of male dignity; that this requires both the submission of women and children to paternal authority, as well as the violence to enforce this submission. These may seem like archaic notions that intellectually sophisticated professionals within justice systems would easily dismiss, but subconsciously they are proving to be remarkably resilient.
Due to PA’s dominance of family court proceedings, a “good mother” is now not one who is loving, caring, and responsible towards her children, but instead a mother who actively encourages contact with a father, whether he is violent or not. This demand of mothers is not just an abdication of the court’s responsibility to protect children, but a clear demonstration of the backsliding in women’s rights within the justice system. A reversion of women to a state of coverture, where her obligations as a citizen are in sole service to men.
It is re-establishing this female servitude to men that has been at the core of how MRAs have successfully captured family courts. These groups have specifically targeted the family court because it is a court that trades in gender roles, and because the household is deemed an area where male supremacy should still endure. MRAs have a brute zero-sum understanding of human interaction, and therefore display a profound sense of grievance and victimhood that advances women have made with their rights and social capabilities are perceived to have come at their expense. The ideological conversion of the family court is retribution for these female social advancements, hitting women where it hurts them the most, their maternal protective instincts.
With the institutionalisation of PA within family courts, abusive men have successfully been able to weaponise legal proceedings against their children and former partners. The family court has now become an extension of these men’s coercive control, making it almost impossible for women and children to escape from abusive environments. The organising principle of the court has become one that sees male violence as something that women and children simply need to carry for their societies.
Through this perspective the contest to define masculinity as simply — and approvingly — brutish and chaotic is being won. The state is relinquishing its monopoly on violence and conceding that domestic violence is outside of its purview; the goal of Warwick’s acts of terrorism against the family court in Sydney. At best, the family court seems to believe that setting behavioural standards for men is unfair, that love, care, and responsibility are beyond their capabilities and therefore custodial judgements need to compensate for these natural male deficiencies.
But by consistently rewarding abusive men the law is giving no worth to those men who are loving, caring, and responsible partners and parents. The state is signalling that masculinity doesn’t need to find its dignity in love, kindness, and compassion, and that parenthood — for men — is effectively a neutral concept devoid of any ideals to strive towards. There is an assertion that a man’s biology carries far greater legal weight than his actions.
The conviction of Leonard Warwick offers family courts the opportunity to self-assess; to understand what has occurred over the past three decades that has allowed terrorists like him to gain ideological ascendancy in their courtrooms; to comprehend how they have surrendered to an unscientific ruse that would be deemed inadmissible in any law-abiding court; and to recognise that their core purpose — the protection of children — has now been extraordinarily inverted. It is an opportunity for family courts to grasp that just as the New South Wales Supreme Court has ruled that Warwick’s acts of public terrorism were unacceptable, so too should they believe that private acts of terrorism are equally intolerable.